AJAYKUMAR RAJPATRAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of the present application u/s.389 of the Code of Criminal Procedure, 1973, the applicant herein original accused has prayed to suspend the sentence imposed by the learned Special Judge, (POSCO) Court No.2, Ahmedabad City in Special (POSCO) Case No. 18 of 2014 vide judgment and order of conviction and sentence dated 7.5.2016, by which, the applicant has been convicted for the offences punishable under Section 354(A) of the Indian Penal Code and ordered to undergo one year rigorous imprisonment and to pay fine of Rs.1000/-, in default, to further undergo rigorous imprisonment of one month. The applicant was further ordered to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1000/-, in default, to further undergo one year rigorous imprisonment for the offence punishable under Section 363 of the Indian Penal Code and for the offence under Section 376(f) of the Indian Penal Code, he has been ordered to undergo rigorous imprisonment of ten years and to pay a fine of Rs.2000/-, in default, to further undergo two years rigorous imprisonment. Learned Special Judge has further ordered the applicant to undergo ten years rigorous imprisonment and to pay a fine of Rs.5000/-, in default, to further undergo two years rigorous imprisonment for the offence under Section 5(L) and 6 of the Prevention of Children from Sexual Offences Act, 2012. The applicant was further ordered to pay Rs.30,000/- to the victim within one month and also to pay 75% of the fine amount towards the compensation.

(2.) Learned advocate Mr. B.M. Mangukiya appearing for the applicant submitted that the appeal is admitted by this Court on 13.7.2016 and present application is filed this application to release the applicant during the pendency of the appeal. He submitted that originally so called place is shown as Guest House and in the present case, during the investigation, the CCTV camera and video footing were collected, but the same were not produced with the charge-sheet as evidence. He read the statement of the Manager examined by the prosecution i.e. Mahendrasinh Umrasinh Rav as P.W.7 at Exhibit 33 and submitted that this witness disclosed in his evidence that footage of CCTV was not saved and entry made regarding Guest House. He further submitted that the evidence of prosecutrix P.W.1 Kajal Kamalsing Rajput examined at Exhibit 6 cannot be said to be reliable one, trustworthy and there are several contradictions in her evidence. He also submitted that the FIR was lodged at belated stage and the delay was not explained properly. He further submitted that prosecution could not produce any cogent evidence to establish that the prosecutrix was at the Guest House with the present applicant. He also submitted that investigation was not carried out in fair and proper manner. As per the records, the prosecutrix sent 37 SMS to the present applicant. Learned advocate further submitted that FSL has certified that nothing was found from the muddamal sent for examination and even there is no any circumstantial evidence, which links the applicant to the alleged offence. He also submitted that the applicant is in jail since 4.3.2014. In view of above submissions, learned advocate for the applicant prays for bail pending the Appeal.

(3.) Learned APP Mr. N.J. Shah appearing for the State, submitted that looking to the seriousness of the offences, in which the applicant is involved, the bail is not required to be granted. He also submitted that herein the present case, the victim is of 16 years 5 months and 12 days and therefore, the victim is a minor and the applicant, who is a teacher and as per the status of the applicant, the offence committed by the applicant is serious. Therefore, he prayed to dismiss the present application.